Guardianship
When someone is unable to manage their own health or financial decisions due to age or disability, a guardianship may be necessary to ensure that person continues to receive the care and dignity they deserve.
What is a Guardianship?
A guardianship is a court-supervised arrangement where a trusted person (the guardian) is given exclusive control over some aspect of another person’s life, such as health care decision-making or property management. The guardian has a fiduciary relationship with the ward, which means the guardian has a legal obligation to act in the ward’s best interest. Guardianships are used to help both incapacitated adults and minor children who are legally unable to manage their affairs.
When is a Guardianship Appropriate?
For Incapacitated Persons
Most guardianships occur because the ward (the person who needs care) did not have other estate planning documents in place before they reached a point where they are unable to care for themselves and that person then needs help managing their health care and property.
Oftentimes, a durable power of attorney and designation of health care surrogate provide the nominated agent or surrogate sufficient power to continue caring for the person in need without a guardianship, but these documents only provide the nominated person specific powers, not remove any powers from the principal (the person who executed the documents). Even in cases where estate planning documents are already in place, a guardianship or formal declaration of incapacity may still be necessary if the person in need engages in financial mismanagement, stops caring for themselves, engages in self-destructive behavior, or is being taken advantage of by another person. In these cases, a court may need to declare the person incapacitated to remove their ability to perform certain actions, like determining their own living arrangements or managing property.
For Minor Children
For minor children, there are two main situations where a guardianship is needed:
When both of a child’s parents are incapacitated, deceased, or no longer have parental rights; and
When a child is entitled to receive more than $15,000, whether that be from an inheritance or lawsuit, such as a wrongful death suit where a parent passed away.
Who Can Serve as Guardian?
Florida law has different sets of qualifications to appoint a guardian depending on whether the guardian is a resident of Florida or another state.
Florida Residents: Any resident who is 18 or older and has full civil rights (not a convicted felon, declared incapacitated, or under guardianship themselves) can serve as a guardian
Non-Residents: a non-resident can serve as a guardian if they are related to the ward in one of the following ways:
A parent, grandparent, child, or grandchild;
A legally adopted child or adoptive parent;
A spouse, brother, sister, uncle, aunt, niece, or nephew, or a parent or child of any of those; or
The spouse of any of the above.
In addition to the above, Florida permits a number of companies to serve as a guardian if they meet certain requirements.
What Are Alternatives to Guardianship?
In Florida, guardianships are considered a last resort—if there is any less restrictive alternative, a court will go with that option instead. The following are common alternatives to guardianships:
Durable Power of Attorney: a document that authorizes a designated person to manage property and make personal and financial decisions for someone else.
Designation of Health Care Surrogate: a document that authorizes a designated person to make health care decisions and access health care information for someone else.
Trust Agreement: an arrangement where one or more people are responsible for managing and distributing property held for the benefit of another.
Supported Decision-Making Agreements: an agreement between people where one will help the other understand their options and consequences regarding financial and health care decisions, but the person affected has to make the final decision.
Guardian Advocacy: a court process similar to a guardianship but that does not require the ward to be adjudicated incapacitated—this is only available when the ward has a qualifying condition that existed before they turned 18 and that will continue to affect them throughout their life.
Schedule a Free Consultation
Michael Merhar is a Gainesville guardianship attorney who helps people throughout Florida avoid guardianships through thoughtful planning when possible and establish them when unavoidable. If you would like help drafting a plan to avoid a guardianship or need to establish a guardianship for a loved one, please schedule a free consultation today.